Dowling v Minister for Justice

• Jurisdiction: Ireland
• Judge: Fennelly J.,Murray, J.
• Judgment Date: 22 May 2003
• Neutral Citation: [2003] IESC 33
• Court: Supreme Court
• Docket Number: [S.C. No. 240 of 2002]
• Date: 22 May 2003

[2003] IESC 33

THE SUPREME COURT

Murray, J.

McGuinness, J.

Fennelly, J.

Record No. 340/02

DOWLING v. MIN FOR JUSTICE

GLEN DOWLING

APPLICANT/APPELLANT

-V-

MINISTER FOR JUSTICE, EQUALITY AND LAWREFORM

RESPONDENT

Citations:

MURPHY, STATE V KIELT 1984 IR 459

MURRAY V AG 1991 ILRM 465

DPP V TIERNAN 1989 ILRM 149

CRIMINAL JUSTICE ACT 1960 S2

PRISONERS (TEMPORARY RELEASE) RULES 1960 SI 167/1960 R2

CRIMINAL JUSTICE ACT 1960 S6

PRISONERS (TEMPORARY RELEASE) RULES 1960 SI 167/1960 R3

PRISONERS (TEMPORARY RELEASE) RULES 1960 SI 167/1960 R4

PRISONERS (TEMPORARY RELEASE) RULES 1960 SI 167/1960 R5

CRIMINAL JUSTICE ACT 1964 S4

RYAN V GOV OF LIMERICK PRISON & ANOR 1988 IR 198

Synopsis:

PRISONS

Detention

Temporary release - Applicant sentenced to imprisonment subsequently granted temporary release by Minister - Nature of decision to grant temporary release - Whether distinct monthly period of release - Conditions of temporary release - Good behaviour - Whether breach of conditions of temporary release - Whether fact that prisoner questioned in relation to commission of offence breaches conditions of release - Prisoners (Temporary Release) Rules, 1960 SI 167/1960 rule 5 (340/2002 - Supreme Court - 22/05/2003)

Dowling v Minister for Justice, Equality and Law Reform - [2003] 2 IR 535

JUDICIAL REVIEW

Certiorari

Temporary release - Whether decision terminating release ought to be quashed - Criminal Justice Act, 1960 - Prisoners (Temporary Release) Rules, 1960 SI 167/1960 (340/2002 - Supreme Court - 22/5/2003)

Dowling v Minister for Justice, Equality and Law Reform - [2003] 2 IR 535

the appellant, who had been sentenced to life imprisonment, had been granted temporary release renewable monthly by the respondent subject to his being of good behaviour and signing on each month with the Governor of the prison. He was subsequently arrested in relation to another suspected offence, questioned thereon and released without charge but was then returned to imprisonment. He was informed that the reason for the termination of his temporary release was that he had been questioned in relation to the commission of a serious offence. On an application to quash the decision to terminate his temporary release, the High Court, refusing his application, held that the said decision amounted to a refusal to renew temporary release which was within the executive discretion of the respondent and which did not give rise to any rights in the applicant. The appellant appealed the decision to the Supreme Court. The appellant contended that when granted temporary release by the respondent, he was meant to have full temporary release which would be extended indefinitely unless he breached the conditions of such release and the decision was not one limited to a single month. The respondent argued that the specified period of temporary release was for one month only.

Held by Fennelly J, delivering the judgment of the Supreme Court, in allowing the appeal that the wording of the temporary release decision conveyed that the appellant was going to be indefinitely on temporary release, provided he was of good behaviour and the respondent was not going to reconsider the matter each month. The mere fact that the appellant had been questioned in relation to another crime did not amount to a breach of the conditions of his temporary release to be of good behaviour and was, accordingly, entitled to remain on temporary release.

Held by Murray J that although the liberty which a prisoner enjoyed while on temporary release was not on a par with the right to liberty enjoyed by an ordinary citizen, the early termination of the period of release had to be carried out in accordance with the principles of constitutional justice. The mere fact that a prisoner had been the subject of an investigation into an offence was an insufficient reason for the revocation of his temporary release. However, that did not preclude the respondent from taking such a decision pending the outcome of an investigation into an alleged offence, provided it accorded with the principles of constitutional justice.

1 Judgment of Murray, J.delivered on the 22nd day of May,2003.

2 I am in complete agreement with the judgment of Mr Justice Fennelly and the order which he proposes. However, there are a few brief observations of my own which I would wish to make in relation to the powers of the Minister in a case of this nature.

3 It was argued, inter alia, on behalf of the Minister that the nature and purpose of the "monthly renewable temporary release" granted to the Appellant on the direction of the Minister was to allow the Appellant temporary release for successive monthly "trial" periods and that the Minister having exercised his discretion to permit the temporary release for such trial periods could, at any stage, refuse to grant a further monthly"trial" period in his complete discretion. As Mr Justice Fennelly very clearly explains in his judgment, the grant of "monthly renewable temporary release" cannot, in the circumstances of this case, be considered as constituting a discrete release for each successive month for which the Appellant was at liberty but rather a more general temporary release subject to the specified conditions of his release being complied with, including a duty to report on the 23 ^rd of each month to sign on at Mountjoy prison and see a Probation and Welfare Officer. This latter conditionseemsto me more consistent with a monitoring of the Appellant while he was on temporary release rather than the termination point of discrete releases each month.

4 Of course it is inherent in the wide discretion which the Minister has whether or not to grant temporary release in the first place that he should have the flexibility of authorising the temporary release of a prisoner for a specified trial period of quite short duration, if that is what the Minister feels is appropriate. But that is not what occurredhere.

5 The termination of the Appellant's temporary release in this case occurred because it had come to the Minister's attention that he was "the subject of a garda investigation into a seriouscrime," as stated in the letter sent to him on behalf of the Minister on the 16 ^th March, 2000. As this court made quite clear in The State (Murphy) -v- Kielt [1984] I.R. 459,the mere fact that a prisoner has been charged with an offence is an insufficient reason for the revocation of his temporary release. In so holding in that case, Griffin J. explained that "Charges are frequently dropped or not proceeded with and, if a temporary release can be revoked merely or solely because the person released has been charged with an offence, what of the apparent injustice done to such a person who, in the period intervening between the charge and the dropping of the charges, has lost the liberty to which he would otherwise had been entitled under the Act andRules?" (emphasis added). This reasoning must apply with even greater force in circumstances, such as this case, where a prisoner on temporary release was solely the subject of an investigation in relation to an alleged offence, arrested for that purpose, but never charged with any offence.

6 However, in applying the principles of constitutional justice or fairness to these matters, the special status of the prisoner and the particular responsibilities of the relevant authorities must be taken into account. In Murray -v- Ireland the andAttorney General [1991] I.L.R.M. 465 Finlay, C.J. held "The length of time which a person who is sentenced to imprisonment for life spends in custody and as a necessary consequence the extent to which, if any, prior to final discharge, such a person obtains temporary release is a matter which under the constitutional doctrine of the separation of powers rests entirely with theExecutive;" Finlay, C.J., in D.P.P. -v- Tiernan [1989] I.L.R.M. 149 at 153 described the power of release of a prisoner vested in the Executive as "a matter of policy pursued by the Executive at given times and subject to variation at the discretion of the Executive."

7 It follows that the temporary release of a prisoner before the sentence imposed by a court has expired is a privilege accorded to him at the discretion of the Executive. The liberty which a prisoner enjoys while on temporary release, being a privilege, is clearly not on a par with the right to liberty enjoyed by an ordinary citizen, although the early termination of the period of release must be carried out in accordance with the essential principles of constitutional justice as envisaged by this Court in The State (Murphy) -v- Kielt. Where a prisoner on temporary release is arrested in connection with a garda investigation into an alleged offence (such as the offence of murder, as in this case) such an...